[Cite as Grilliot v. Dept. of Transp., 2010-Ohio-6668.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

ERIC LEE GRILLIOT 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06541-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Eric Lee Grilliot, filed this action against defendant, Department of 

Transportation (ODOT), contending his 1993 Chevrolet S10 truck was damaged as a 

proximate cause of negligence on the part of ODOT in maintaining a hazardous 

condition on Interstate 75 North in Hamilton County. Specifically, plaintiff related the tire 

and rim on his truck were damaged when the vehicle struck a pothole “just before the I275 merge” on Interstate 75. Plaintiff filed this complaint requesting damage recovery in 

the amount of $718.92, the total cost of replacement parts needed resulting from the 

described incident. Plaintiff recalled that his property damage event occurred on April 

10, 2010 at approximately 10:00 p.m. The filing fee was paid. 

{¶ 2} Defendant denied liability in this matter based on the contention that no 

ODOT personnel had any knowledge of the particular damage-causing pothole prior to 

plaintiff’s April 10, 2010 described occurrence. Defendant located the particular pothole 

“at milepost 16.77 on I-75 in Hamilton County” and advised that “ODOT did not receive 

any reports of the pothole or have knowledge of the pothole prior to the (April 10, 2010) 
Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

incident.” Defendant submitted a copy of “Maintenance Records” recording ODOT 

maintenance activity on Interstate 75 from October 10, 2009 to April 10, 2010. The 

submitted documents show ODOT personnel performed pothole patching operations in 

the vicinity of plaintiff’s incident on March 2, 2010, March 3, 2010, and March 4, 2010. 

{¶ 3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton 

County. Defendant noted the ODOT “Hamilton County Manager inspects all state 

roadways within the county at least two times a month.” Apparently no potholes were 

discovered at milepost 16.77 on Interstate 75 North the last time that section of roadway 

was inspected prior to April 10, 2010. The claim file is devoid of any copy of ODOT 

Hamilton County inspection records. Defendant asserted the particular location of 

Interstate 75 is a well patrolled location and suggested the pothole plaintiff’s vehicle 

struck “existed for only a short time before the incident.” 

{¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy 

Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he suffered a loss 

and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio 

State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the 

burden of proof rests to produce evidence which furnishes a reasonable basis for 

sustaining his claim. If the evidence so produced furnishes only a basis for a choice 

among different possibilities as to any issue in the case, he fails to sustain such burden. 
Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 

O.O. 415, 61 N.E. 2d 198, approved and followed. 

{¶ 5} Defendant has the duty to maintain its highways in a reasonably safe 

condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 

49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an 

insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 

112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 

Ohio App. 3d 723, 588 N.E. 2d 864. 

{¶ 6} In order to prove a breach of the duty to maintain the highways, plaintiff 

must prove, by a preponderance of the evidence, that defendant had actual or 

constructive notice of the precise condition or defect alleged to have caused the 

accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. 

Defendant is only liable for roadway conditions of which it has notice, but fails to 

reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 

64, 507 N.E. 2d 1179. There is no evidence that defendant had actual notice of the 

pothole. Therefore, to find liability on a notice theory, evidence of constructive notice of 

the pothole must be presented. 
Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

{¶ 7} “[C]onstructive notice is that which the law regards as sufficient to give 

notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of 

Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the facts of each case not 

simply by applying a pre-set-time standard for the discovery of certain road hazards.” 

Bussard, at 4. “Obviously, the requisite length of time sufficient to constitute 

constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.

(Feb. 4, 1993), Franklin App. 92AP-1183. In order for there to be a finding of 

constructive notice, plaintiff must prove, by a preponderance of the evidence, that 

sufficient time has elapsed after the dangerous condition appears, so that under the 

circumstances defendant should have acquired knowledge of its existence. Guiher v. 

Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4, 

Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.

{¶ 8} The trier of fact is precluded from making an inference of defendant’s 

constructive notice, unless evidence is presented in respect to the time that the pothole 

appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 

2d 262, 577 N.E. 2d 458. No evidence was presented to establish the length of time 

that the particular pothole was present. Size of the defect (pothole) is insufficient to 

show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61 

Ohio Misc. 2d 287, 587 N.E. 2d 891. Plaintiff has failed to prove that defendant had 

constructive notice of the pothole. Plaintiff has not produced any evidence to infer that 

defendant, in a general sense, maintains its highways negligently or that defendant’s 

acts caused the defective condition. Herlihy v. Ohio Department of Transportation
Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

(1999), 99-07011-AD. Therefore, defendant is not liable for any damage that plaintiff 

may have suffered from the roadway. 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

ERIC LEE GRILLIOT 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 
Case No. 2006-03532-AD - 6 - MEMORANDUM DECISION

Case No. 2010-06541-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE DETERMINATION

 Having considered all the evidence in the claim file and, for the reasons set forth 

in the memorandum decision filed concurrently herewith, judgment is rendered in favor 

of defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Eric Lee Grilliot Jolene M. Molitoris, Director 

876 Hickory Lane Department of Transportation 

Troy, Ohio 45373 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

9/16 

Filed 11/2/10 

Sent to S.C. reporter 2/11/11